Document Type

Working Paper

Publication Date

2012

Abstract

This essay takes up questions regarding whether initiative proponents and legislators can defend a law in federal court when the government declines to defend. Looking first at intervention under the Federal Rules of Civil Procedure, I argue that neither has the cognizable interest needed to enter an ongoing lawsuit as a party. Yet even if they are allowed to intervene, these would-be defenders of state or federal law cannot take on the government’s mantle to satisfy Article III because the government’s standing derives from the risk to its enforcement powers, which is an interest that cannot be delegated to others. Nor can they make out any more than a desire to have the law enforced consistent with their views, which is the sort of generalized grievance the Supreme Court has long rejected as a basis for standing. Yet numerous courts have permitted intervention and accorded standing to these types of intervenors, including in the marriage cases before the Supreme Court in the 2012 term. We can understand this unduly generous approach as a part of a larger phenomenon at the crossroads of procedure and judicial legitimacy. In these high-vulnerability contexts, where courts are asked to decide the constitutionality of popular measures, legitimacy concerns, including what I term countermajoritarian anxiety and guilt, permeate procedural decisionmaking and, at times, override otherwise operative procedural constraints.

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